Sir Henry Sumner Maine on Democracy

It has been a good many years since the democratic political system, and all the principles upon which it is based, have received critical scrutiny—free from all the ideological whitewash that, especially in recent decades, has prevented a satisfactory examination of the problems of government and social organization. Though rare in the history of modern political thought, there have been works distinguished for the realism and penetration of their analysis, such as Tocqueville’s Democracy in America, Stephen’s Liberty, Equality, and Fraternity, and Hayek’s The Constitution of Liberty. There have been other works of similar stature that are little known nowadays and have long been out of print. Particularly noteworthy in this respect is one of Sir Henry Sumner Maine’s works: Popular Government, which has just been reissued in a very handsome binding by the Liberty Fund, and is now available at a surprisingly low price.

The author of Popular Government is widely known for his work on Ancient Law, and other investigations dealing with the early history of communities. Maine was one of the first to employ the critical methods of scientific history to the enigmas of man’s cultural beginnings, and in general one of the great pioneers in the field of cultural anthropology. He stands with William Graham Sumner, Sir James Frazer, and Edward Westermark as one of the nineteenth century’s most illustrious students of man’s beginnings. In Popular Government, Maine applies the research techniques of the anthropologist to the problems of government, and critically examines the new faith in the common man as embodied in the three great catchwords of the worldwide democratic movement: Liberty, Equality, and Fraternity.

Like Burke and Bentham before him, Maine traced the organic social and political disorders of his era to the revolutionary romanticism which Rousseau, among others, raised to the dignity of a social philosophy. At the very heart of this philosophy were doctrines that warranted serious examination. Of these, the most important was the idea of the “social contract,” which was derived from the notion that society was a product of abstract design, called into being by popular covenant. From this, Rousseau sought to justify, or if you will, institutionalize, revolutionary social change and the unlimited power of the “people” to legislate as they please regarding the essential constitution of society.

We can readily see the charm which such a conception of society holds out to all who have grown embittered with life’s game, or otherwise disaffected with the ways of the world. Rousseau provides all of the necessary justifications for revolutionary totalism. If society results from the conscious designs of the human mind, if its institutions can be regarded as so much furniture in a room to be movedabout at one’s pleasure—then the way is clear for organic social experimentation. If man’s natural right is to liberty, equality, and fraternity, why should we be content with the way things are, given man’s inherent potential for greatness? Why should we content ourselves with mere piecemeal reforms, when one clean sweep from the revolutionary sword can establish a new and better order of things, in harmony with man’s innate goodness? Above all, why must we let constitutional checks and balances (those silly parchment barriers) and other reactionary prejudices (like tolerance, and the respect for the rights of others) stand in the way of the coming utopia?

As with all revolutionary ideologies, Rousseau’s logic is impeccable, given his root assumptions. Yet, as Maine takes pains to show, it is precisely the assumptions of this chain of reasoning that are most fallacious: the “social contract” is a myth, or a figment of the theoretician’s abstractions, with no counterpart in historical reality. Human societies were not formed by contract or by any kind of conscious human design. Rather, the social bond results from an untold number of human interactions, ideas, and practices, which grow over time and under the pressure of circumstance into configurations that no single human mind could have planned or foreseen. Nor do men have “natural rights” in the sense used by Rousseau. Nature does not bestow rights; still less does it protect them. Nature is indifferent to man at best, and downright hostile to him at worst. In truth, the rights of man are the fruit of socialrelations. The life of presocial man, says Maine, was quite unlike Rousseau’s idyllic conception. On the contrary, it was a life marked by the unchecked reign of violence, by the rule of naked force, in which man was unconditionally subject to the tyranny of the environment, both natural and human. In no sense could this life be called peaceful. In no way would it be appropriate to speak in terms of freedom, equality, and security when describing the conditions under which presocial man was compelled to live. Primitive men were no more free than they were equal or secure.

What does history tell us about the idea of progress? There is nothing rarer, writes Maine, in the annals of history than a sustained improvement in the general conditions of man’s life. Indeed, the very notion of progress, of change for the better, is a strictly modern idea that has arisen only within Western civilization during the last hundred and fifty years, and remains, even today, completely foreign to the thought and action of the great mass of peoples in India, Africa, and China. Strangely enough, the short liberal interlude of the late eighteenth and nineteenth centuries brought about such spectacular improvements in the human condition that people have completely forgotten what life was like in the “good old days” of only a few generations ago. And the belief that progress is a free gift of Providence, or a spontaneous development not tied to any specific moral, and cultural moorings is a very common, and a very destructive, belief—because it fosters the illusion that man can enjoy the fruits of civilization while giving a free reign to his instincts and impulses.

Maine also challenges the “illusion of the old liberals,” the belief that the common people are rationally motivated beings (in the sense in which the philosopher would speak of “reason”) capable of managing the affairs of society and state with justice, prudence, and sobriety. Maine steers clear of lofty speculations regarding the virtues of men in general, preferring to let the concrete historical record speak for itself. There is a very pronounced tendency, he writes, for liberals and radicals alike to overrate vastly the capabilities of the people. But in truth, the people are too absorbed in the realities of everyday life, too burdened with the problems of livelihood, to care anything for abstract ideas or to interest themselves in the philosophical problems of life.

Usually the “people” have proven to be the tyrants’ most zealous supporters. Rarely have they shown much concern for freedom or individual dignity—as principles not related to their own immediate circumstances and needs. The people have also shown themselves to be capricious, narrow-minded, and shortsighted—and foolish enough to forsake the very real long-term blessings of freedom for the illusions of equality and security, as promised to them by a long line of ambitious demagogues and usurpers. Nor have popular governments shown much inclination to carry out genuine reforms, though they have demonstrated a decided tendency toward mere agitation. In fact, nearly all of the great reforms in law, morality, and social practice, and, for that matter, creative achievements generally, have seldom enjoyed the support of the masses. Far from being inherently progressive in character, popular governments have, rather, displayed a marked tendency toward a stifling, narrow-minded conservatism—egalitarian in nature and hostile of the general public.

Maine’s Popular Government is a rare book, distinguished for the penetration and factual realism of its analysis, which goes beyond the forms and symbols of democracy to investigate the inner workings, which the public is rarely, if ever, allowed to see. By this we refer to the underworld of our political system where real government actually takes place, the world which stands in such stark contrast to all the lofty moral ideals upon which the democratic system was to havebeen based: the world of corruption, “wire pulling” demagoguery, and the carefully veiled pursuit of power and privilege by the interlocking network of interest groups that lurk in the lobbies of our democratic chambers and exert powerful influence over the actions that government will take. In these observations Maine parallels the thinking of the Machiavellian school of Mosca, Pareto, and Michels. But it is in this very comparison with the great theorists of the ruling class that the fundamentally liberal nature of Maine’s thinking is brought to light. While acutely aware of the leadership elites that exist of necessity in all political systems, Maine is far from regarding the representative institutions of free governments as illusions or mere “political formulas.”

Like Tocqueville before him, Maine is a liberal critic of democracy, and a great defender of free institutions generally. He seeks to render the democratic system viable, to free it from the clutches of its own worst excesses, of which there are three. First, there is the sheer instability of a government wholly dependent upon popular will and opinion, an instability that encourages first anarchy, then despotism. Second, there is the problem which the vagaries of that opinion pose for statesmen who seek the flowering of their nation. Because of the very nature of the popular mind, and its influence upon the elected official, the affairs of the democratic state are usually in disorder, seldom free from petty partisan disputes and subject to the sway of narrow-minded, short-term interests. Finally, there is the greatest danger of all: statism, the absorption of all spontaneous and voluntary social action by the state’s bureaucratic apparatus. This results as much from socialist designs as from the day-to-day workings of democratic politics under the sway of interest groups, which always push in the direction of more government.

Like Burke, Maine is acutely conscious of the moral problems of government. He realizes that, in the final analysis, the maintenance of liberal institutions is a problem that transcends the sphere of constitutional forms and political practices and comes to embrace the realm of moral ideals. No free political order can endure unless the people themselves are morally committed to it. If this commitment is not in the hearts and minds of the people, then no force on earth can avert the rise of despotism. In any event the people ultimately get the kind of government that they deserve.

At the strictly practical level, democracy can work, and work well, but only if it clings tenaciously to the liberal ideal and to the constitutional forms that express it. Limited government is the answer. A written constitution that stands above party strife, that imposes strict limitations on the scope of state power, and checks legislative plunder, that provides a system of checks and balances over the exercise of political power, and that ordains the rule of law over all the state’s activities—this is the answer to democracy’s crisis, an answer that was once expressed, though imperfectly so, in the American Constitution, which Maine greatly admired.

Maine’s Popular Government was written more than eighty years ago; yet it has retained its relevance. Since the time of its publication, radicals and socialists have blithely dismissed the book as the work of a man steeped in Victorian pessimism, whose mind was too absorbed in the dark past to appreciate the bright prospects of the future. Maine never thought it worth his while to reply to these absurdities. Nor do I. Yet an assessment of his stature as a political theorist is in order, which must include recent political and social developments. To call Maine a “Victorian pessimist,” as did Sir Ernest Barker, without bothering to examine the accuracy of his analysis in the light of present-day trends, is something akin to accusing a man of libel without bothering to assess the truth of what he said. For in the light of present-day trends, it is clear that, in all of his fundamental criticism, Maine was indeed right. If we wish to extricate ourselves from our present difficulties, we must open our minds, cast off our most cherished illusions, and profit by Maine’s critical appraisal of our present political “order.”